The Fraud Files: Decoding the Economic Crime Act EP6: Identification doctrine reform

Herbert Smith Freehills Podcasts

Under the so-called identification doctrine, companies could previously only be held criminally liable for a criminal offence requiring a particular mental state (e.g. knowledge, dishonesty etc.) if the mental state of a person representing the company's "directing mind and will" could be attributed to the company. In response to suggestions that the doctrine did not adequately deal with the realities of corporate structures, making it disproportionately difficult to prosecute large organisations for wrongdoing committed by their employees, Parliament enacted the Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023), which introduced a new statutory route to attributing criminal liability to a corporate. Under new provisions which came into force in December 2023, a corporate can be liable where a ‘senior manager’, acting with their actual or apparent authority, commits a listed economic crime offence. In this episode, Elizabeth Head, Eamon McCarthy-Keen, and Jessica Chappatte discuss the background to the reforms, the new provisions of the ECCTA 2023, and the implications for businesses of this expanded route to corporate criminal liability.
You can also read our briefing on this topic, which is available on our blog.